Freedom of expression, as enshrined in Article 10 of the European Convention on Human Rights (hereafter the ECHR), is one of the fundamental foundations of a democratic society and one of the basic conditions for the progress and development of every human being. States must not only refrain from interfering with this right but must also take measures to protect it effectively. Restrictions on the freedom of expression are provided for in paragraph 2 of Article 10 of the ECHR, which must be interpreted to the letter, and the need for any restrictions convincingly demonstrated. In particular, any intervention of a public authority in the right to expression must be provided for by law, be necessary for a democratic society and must pursue one of the purposes referred to in paragraph 2. The European Court of Human Rights (hereinafter ECtHR) examines this intervention and decides whether it is proportionate to the legitimate aim pursued and whether the grounds relied on by national authorities to justify it are pertinent and sufficient. Failure to satisfy these conditions results in a violation of Article 10.
In 2017, the European Court of Human Rights (hereafter ECtHR) found that Greece had violated Article 10 of the ECHR in two cases.
1. January 2017, the case of Kapsis and Danikas v. Greece (appeal no. 52137/12).
In this case, the applicants, who are journalists, claimed that their sentencing by the national courts to pay compensation to P.M. constitutes a violation of their right to freedom of expression.
The 2nd applicant had in 2004 written an article in the newspaper “TA NEA”, which had referred to P.M as ‘completely unknown’. In 2015, P.M. filed a lawsuit against the then director of the newspaper and the writer of the article. Both in the first and second instance (2006 and 2007 respectively), the Greek courts sentenced the defendants to pay compensation to P.M. The defendant’s appeal was rejected by the Supreme Court in 2011.
The ECtHR ruled that the phrase “completely unknown” is an evaluative judgment rather than a fact. They considered that the national courts had failed to assess the phrase in the context of the publication in order to determine the intention of the applicants, and held that the expression cannot be considered as a gratuitous insult since P.M., holding a quasi-political position, exercises public authority and therefore should have expected that her appointment would be subject to scrutiny by the press. The court also judged that the national courts failed to take into account the applicants’ financial situation in order to determine the sum of compensation. They therefore concluded that there had been a violation of Article 10 of the ECHR, judging that the conviction was not necessary in a democratic society, and that the national authorities did not give adequate and sufficient reasons to justify sentencing the applicants to pay compensation. The penalty was not deemed proportionate to the intended legitimate purpose, and the conviction did not respond to a pressing social need.
2. March 2017, the case of Athanasios Makris v. Greece (appeal no. 55135/10)
The applicant claimed that his conviction by the Greek criminal courts violated his right to freedom of expression.
The case concerned Mr Makris’ criminal conviction for malicious accusations on account of his having distributed, during a town council meeting, a text criticising the outgoing mayor in connection with a public procurement contract. In January 2007 Mr Makris distributed a document to town councillors criticising the outgoing mayor (V.A.) in connection with his handling of a public procurement contract; his criticisms were later published in the press. In December 2008, in proceedings brought by V.A. as a civil party, the Piraeus Criminal Court found Mr Makris guilty of defamation, sentencing him to a suspended term of one year for having reported untrue allegations which impugned the honour and reputation of V.A. The judgment was upheld by the Piraeus Court of Appeal, which reduced the prison sentence to six months suspended. Under Article 10 (freedom of expression) of the European Convention on Human Rights, Mr Makris appealed on points of law, but his appeal was dismissed in July 2010.
The ECtHR underlined that it attaches the greatest importance to freedom of expression within the context of political dialogue and considers that political speech may not be limited without a compelling reason since free political dialogue is of primary importance for democratic functioning. The court concluded that the applicant’s criminal conviction constituted a disproportionate interference with the latter’s right to freedom of expression and therefore that there had been a violation of Article 10 of the ECHR.
The fundamental rights that every citizen should enjoy are guaranteed by the European Convention on Human Rights. Respect for these fundamental rights is one of the basic components of a state that conforms to the rule of law.
However, in 2017, the European Court of Human Rights issued two judgments in which it found that the applicants’ right to freedom of expression had been violated by the national authorities.
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